The UK-Rwanda memorandum of understanding (MoU) has attracted much criticism from across the political spectrum on ethical, political and financial as well as legal grounds. One criticism that has become increasingly central to the legal challenges is around enforceability: can the promises in the MoU be upheld? Another criticism that also follows from its status as a non-binding MoU is around accountability: should the policy have been subject to parliamentary scrutiny or even assent? As an access to justice charity with strategic priorities that include a fair and humane immigration system and a constitution that promotes accountability, these issues are of direct concern to the Public Law Project.

First, enforceability. Tuesday’s planned flight to Rwanda did not go ahead, partly because the European Court of Human Rights (ECtHR) found that the UK government would have no effective mechanism to force the Rwandan Government to return people to the UK if the UK courts find that the policy is unlawful when they hear the case in full in July.

In making its decision, the ECtHR deferred to the UK court finding that there were ‘serious triable issues’ around removals to Rwanda. It was this finding by a UK court that triggered the ECtHR’s decision to halt three of the seven remaining planned removals. Where ECtHR differed was in its assessment of the enforceability of the MoU. It ruled that there was an ‘absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts’.

Because the MoU is non-binding, the UK cannot enforce it under international law. If people are mistreated in Rwanda or do not have access to a fair immigration process, legally there is nothing the UK can do to put things right. There is no dispute resolution process and no recourse to international courts. This lack of enforceability is central to the question before the UK courts of whether Rwanda is a safe country for asylum seekers.

It is also one of the defining features of a non-binding MoU. These purely political promises cannot include legally enforceable guarantees of rights or access to due process, or binding rules on what happens if the arrangements are breached. The choice shows a lack of commitment to rights and justice.

The second consequence of the decision to write the arrangement as a non-binding MoU is the lack of scrutiny and accountability. There was no prior parliamentary scrutiny of the merits, practicality, lawfulness, implications or costs of the deal, even though it has such significant implications and effects on people. Only certain categories of binding treaty are published in advance for scrutiny by parliament and can be delayed if Parliament objects to them. Here we have instead a highly controversial policy that was not subject to any scrutiny (let alone approval) by Parliament simply because it is non-binding.

The primary scrutiny is therefore that provided by the courts. Although the House of Lords International Affairs Committee is now holding an inquiry into the UK-Rwanda MoU, it is unlikely to be concluded before the High Court hearing in July on whether the policy is lawful. The government says that the reason a non-binding MoU was chosen was to allow the two countries to amend it quickly if they both agreed. But given its importance and controversial nature, it is hard not to infer that another reason was to avoid prior scrutiny. Of course, where there is no effective access to justice or where the principle of non-refoulement or individual rights are violated, a policy is unlawful regardless of whether an MoU or a treaty was chosen: the question for the courts is how much weight to give any assurances.

For such an ethically, politically, financially and legally controversial policy, the government should be accountable to parliament. It should not be able to avoid that scrutiny and accountability simply by choosing a different type of international agreement. This leaves the courts to decide whether the MoU correctly balances public interest arguments with access to justice, respect for rights and the rule of law – which seems at odds with the government’s avowed aspiration to keep politics out of the courtroom.

Scrutiny is the oxygen of democracy: the question is who will do it. 

Arabella Lang is head of research at Public Law Project